Sir John Edge, C.J and Aikman, J.:— This appeal is brought by the plaintiff under s. 10 of the Letters Patent from an order of the 4th of November, 1891, of our brother Mahmood dismissing the plaintiff's appeal to this Court for default. It is a hard case, but we must be careful not to depart from the correct interpretation of the law on account of the hardness of the case. The appeal which was dismissed was a second appeal in which the amount or value of the subject-matter exceeded one hundred rupees. It was consequently an appeal which our brother Mahmood sitting alone had no jurisdiction to hear and dispose of. His jurisdiction in that respect was limited by Rule I of the Rules of the 30th of November 1889. Rule I was, so far as it applies in this case, made under s. 13 of the 24 and 25 Victoria, C. 104: s. 652 of Act No. XIV of 1882. Further, the appeal, even if it had been one which he had jurisdiction to hear and dispose of, was put in the list of the 4th of November 1891, “for orders” and not for hearing, and it has been the practice of this Court not to dispose of, by way of dismissing or allowing, an appeal which is simply put up “for orders,” unless the parties are ready for hearing and are willing that the appeal should be disposed of. The 4th of November 1891, was the day which had been fixed for the hearing in the notice which had been issued to the respondents, but the appeal as a matter of fact, as appears by the office report, which had been made on the morning of the 4th of November 1891, and which was before our brother Mahmood, was not on that day ripe for bearing. Our brother Mahmood, who was the Judge taking applications on the 4th of November 1891, and before whom and in whose list this appeal appeared for orders, must have overlooked the fact that he had no jurisdiction to hear and dispose of the appeal. He must also have overlooked the fact that; the appeal had merely been put up for orders. When the appeal was called on the 4th of November 1891, no one appeared to [361] support or to oppose. Our brother Mahmood, having sole regard to the fact that the 4th of November 1891, was the day fixed for the hearing, dismissed the appeal for default. Pandit Sundar Lal for the respondents has contended that this appeal does not lie. He has contended that the order which our brother Mahmood passed on the 4th of November, 1891, was not a decree as it is defined in s. 2 of the Code of Civil Procedure. He has relied on the cases of Nand Ram v. Muhammad Bakhsh, Mukhi v. Fakir Dhan Singh v. Basant Singh as showing that the order for dismissal in default was not a decree but an order. He contends that we should follow the ruling of this Court rather than the ruling in Ram Chandra Pandurang Naik v. Madhav Purushottam Naik. In support of his contention he also relied on the decision of the Privy Council in Chand Kour v. Pariah Singh in which it was held that a dismissal of a suit for default could not operate under s. 13 of the Code of Civil Procedure as res judicata. He has also relied upon an unreported decision of their Lordships of the Privy Council in the case of Maharaja Radha Prasad. Singh v. Lal Sahab Rai delivered on the 12th of July 1890, in appeal from this Court, which was to the effect that the dismissal of a suit for default of prosecution could not operate as res judicata. We have very great respect for the decision of the High Court of Bombay: still in our opinion an order dismissing a suit or appeal in default is an order and not a decree, as those terms are defined in the Code of Civil Procedure. A dismissal in default is not “the formal expression of an adjudication upon any right claimed or defence set up” within the meaning of s. 2 of the Code of Civil Procedure. Indeed it would necessarily follow from the two decisions of their Lordships of the Privy Council to which we have referred that an order dismissing a suit or appeal for default could not be treated as “a formal expression of an adjudication upon any right claimed or defence set up.” That view is also supported by a consideration of s. 540 of the Code of Civil Procedure[362]. Prior to Act No. VII of 1888, doubts had been entertained whether an appeal lay under s. 540 of the Code of Civil Procedure from an original decree passed ex parte. In s. 540, as amended by s. 45 of Act No. VII of 1888, the following words were inserted as part of that section:—“An appeal may be from an original decree passed ex parte.” It will be noticed that in Chapter VII, which provides for the dismissal of suits in default, and also provides in certain cases for decrees passed ex parte, the Legislature has not treated the passing of an order of dismissal for default as a decree passed ex parte, and further it may be noticed that where a decree is passed ex parte, it is a decree which is founded either on admission or evidence. Therefore it can be treated as a formal expression of an adjudication upon a right claimed or defence set up as the case may be. In the case of a dismissal under s. 557, that section shows that it is an “order” and not a “decree” which is made.

We are of opinion that a dismissal of a suit or of an appeal for default is by an order and not by a decree. By s. 632 it is enacted that “except as provided in this Chapter the provisions of this Code apply to such High Courts.” The Chapter is Chapter XLVIII, and this is one of the High Courts to which that Chapter applies. S. 556 read with s. 587 provided the procedure which our brother Mahmood no doubt applied in this case. We must treat the order which he made as an order made under s. 556 of the Code. It has been held by a Full Bench of this Court in Muhammad Naim-ullah Khan v. Ihsan-ullah Khan, that s. 588 of the Code of Civil Procedure limits the application of s. 10 of the Letters Patent in appeals from orders made under the Code of Civil Procedure. An appeal from this particular order of our brother Mahmood is excluded by s. 588 of the Code of Civil Procedure, and whilst no appeal is given from an order under s. 556 of the Code, an appellant whose appeal has been dismissed under s. 556 is given a remedy under s. 558, the remedy being an application to the Court for the readmission of the appeal. He is given a further remedy, should the Court refuse to readmit his appeal. An appeal lies against an [363] order of refusal under s. 588, cl. 27. Consequently an appellant in such a case is not without a remedy. Mr. Chaudhri, for the appellant, contended that there was no such remedy open to his client in this case, as our brother Mahmood, having had no jurisdiction to hear and dispose of the appeal, would have no jurisdiction to set aside his own order and readmit the appeal. We need not decide that point, for if our brother Mahmood had no jurisdiction to entertain an application in this case under s. 558 of the Code, it is quite clear to us that he could have entertained an application for review of judgment under s. 623 of the Code of Civil Procedure, and if he had granted the application for review, as it is probable he would have done, he could have ordered that the appeal be beard by a Bench of two Judges who had jurisdiction to hear it. Having come to the conclusion that the order of the 4th of November 1891 was an order and not a decree, and that, whether our brother Mahmood had jurisdiction or not to make it, it is in fact made under s. 556 of the Code, we are bound to hold that this appeal does not lie. We accordingly dismiss it. As this appeal has arisen out of an unfortunate oversight on the part of our brother. Mahmood of two matters which excluded his jurisdiction on that day, we dismiss the appeal, bur, without costs.

[See also Pohkar Singh v. Gopal Singh, Weekly Notes, 1892, p. 50—ED.]

Appeal dismissed.